Karnataka High Court
Sri C Nagaraj vs Madan L Amberkar on 29 July, 2024
Author: V Srishananda
Bench: V Srishananda
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RFA No. 245 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
REGULAR FIRST APPEAL NO. 245 OF 2015 (INJ)
BETWEEN:
SRI. C. NAGARAJ,
S/O LATE SRI. CHENGAIAH,
AGED ABOUT 60 YEARS,
R/AT NO. 76/4-2, 30TH CROSS,
TILAKNAGAR MAIN ROAD,
IV "T" BLOCK, JAYANAGAR,
BANGALORE - 560 041.
...APPELLANT
(BY MS. NANDINI B, ADVOCATE FOR
SRI. K.M. SOMASHEKAR, ADVOCATE)
AND:
1. MADAN L. AMBERKAR,
Digitally S/O LATE U.LV. AMBERKAR,
signed by AGED ABOUT 60 YEARS,
MALATESH R/AT NO.1360/C,
KC
NEAR SHADAKSHARI MUTT,
Location:
HIGH KENCHGATA ROAD,
COURT OF TIPTUR - 572 201.
KARNATAKA
2. T.N. UMESH,
S/O SRI. T. NAGAPPA,
AGED ABOUT 39 YEARS,
R/AT NO.237, HUCHCHANGAMMA NILAYA,
DODDABATHI VILLAGE,
DAVANAGERE - 577 002.
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RFA No. 245 of 2015
3. SRI. T.M. RAJASHEKAR,
S/O SRI. T. NAGAPPA,
AGED ABOUT 48 YEARS,
R/AT NO.237, HUCHCHANGAMMA NILAYA,
DODDABATHI VILLAGE,
DAVANAGERE - 577 002.
4. BALACHANDRA RAO JADAV,
S/O SRI SUBBOJI RAO,
AGED ABOUT 48 YEARS,
R/AT NO.40/301,
RAGHAVENDRA RESIDENCY,
17TH CROSS, 12TH MAIN,
5TH PHASE, J.P. NAGAR,
BANGALORE - 560 078.
...RESPONDENTS
(BY SRI. N. THEJAS, ADVOCATE FOR R1 TO R3;
VIDE ORDER DATED 17.08.2022, APPEAL IS DISMISSED
AGAINST R4)
THIS RFA IS FILED UNDER SEC.96 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 8.12.2014 PASSED IN
OK.S.NO.5785/2013 ON THE FILE OF THE 24TH ADDL. CITY
CIVIL & SESSIONS JUDGE, BANGALORE CITY, DISMISSING
THE SUIT FOR PERMANENT INJUNCTION.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
ORAL JUDGMENT
Heard Smt.Nandini, learned counsel appearing on
behalf of Sri.K.M.Somashekar, learned counsel for the
appellant. None present on behalf of the respondents.
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2. Present appeal is filed challenging the validity of
the judgment and decree passed in O.S.No.5785/2013
dated 08.12.2014 on the file of XXIV Addl. City Civil and
Sessions Judge, Bangalore (CCH - 6).
3. Parties are referred to as plaintiff and
defendants for the sake of convenience as per their
original ranking before the Trial Court.
4. Brief facts of the case which are utmost
necessary for disposal of the appeal are as under:
4.1. Appellant being the plaintiff filed a suit in
O.S.No.5785/2013 against four defendants with a prayer
for permanent injunction in respect of immovable property
bearing No.37, khatha No.857, formed out of Sy.No.12/1
Kothanur Village, Uttarahalli Hobli, Bengaluru South Taluk
measuring east to west 60 ft., north to south 60 ft.,
together with zinc sheet roofed shed which is bounded on
East by road, West by property bearing No.38, North by
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road and South by private property (hereinafter referred
to as suit schedule property).
4.2. Plaintiff claims that he is the owner of the suit
property and continued in lawful possession of the suit
property having purchased the same from Chengaiah by a
registered sale deed.
4.3. One Chengaiah said to have died on 09.10.1984
leaving behind four sons viz., C. Jayachandra, Rajeshekar,
C. Mani and C. Nagaraj (plaintiff). C. Rajeshekar and C.
Mani, died about two years ago.
4.4. Chengaiah had purchased property bearing
No.11, 12/1 and 47/1 of Kothanur Village, Uttarahalli
Hobli, Bangalore South Taluk as per the sale deeds dated
31.03.1972 and 20.07.1974 covering about 5 acres 0.3
guntas of land.
4.5. In respect of suit property, there was a partition
earlier in O.S.No.4706/1997 and suit property fell to the
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share of the plaintiff and thereafter, he is in actual
possession and enjoyment of the suit property.
4.6. It is further contention of the plaintiff that
defendants without there being any interest whatsoever,
tried to interfere with the suit property and therefore, filed
the suit for permanent injunction.
5. In pursuant to the suit summons issued,
defendants entered appearance. But did not chose to file
any written statement. Defendant No.4 was placed
exparte.
6. Thereafter, learned Trial Judge recorded the
evidence of the plaintiff. Plaintiff got examined himself as
P.W.1 and placed reliance on seventeen documents which
were exhibited and marked as Exs.P.1 to Ex.P.17
comprising of certified copy of the sale deed dated
31.06.1972 as Ex.P.1, certified copy of the sale deed
dated 20.07.1974, certified copy of the decree in
O.S.No.4706/1997 as Ex.P.3, certified copy of the sketch
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as Ex.P.4, certified copy of the sale deed dated
17.11.2000 as Ex.P.5, certified copy of the sale deed
dated 25.02.2013 as Ex.P.6, four photographs as Ex.P.7 to
10, compact disc as Ex.P.11, Will as Ex.P.12, RTC in
respect of Sy.No.12/1 as Ex.P.13, certificate issued by
BESCOM as Ex.P.14, bill for having purchased electric
meter as Ex.P.15, receipts issued by BESCOM as Exs.P.16
and 17.
7. Defendants failed to adduce any evidence nor
addressed any arguments on their behalf.
8. Thereafter, learned Trial Judge raised following
points:
1. "Whether plaintiff proves that he is in lawful
possession and enjoyment of the suit schedule
property as on the date of the suit?
2. Whether the plaintiff proves the alleged
interference of the defendants?
3. Whether the plaintiff is entitled for the relief of
permanent injunction as sought for?
4. What order or decree?"
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9. Learned Trial Judge on considering of the oral
and documentary evidence placed on record by the
plaintiff, dismissed the suit of the plaintiff interalia holding
in paragraph Nos.19 and 20 as under:
"19 However on careful perusal of the
documents available on record, the plaintiff
failed to establish the Identity of the plaint
schedule property as shown in plaint schedule.
This is the second round of litigation, which is
pending in respect of the very same subject
matter, since the plaintiff has already initiated
a suit in so.4091/2004 for declaration and
permanent injunction, wherein the 4th
defendant in this case is also the 1" defendant
in the earlier suit 4091/2004. The plaintiff
himself has stated in the plaint that the plaint
schedule property in this case is also one of the
subject matters in O.S.4091/2004. When the
comprehensive suit for declaration and
permanent injunction is still pending, in my
opinion, the plaintiff is not entitled for
discretionary relief of permanent injunction as
prayed in this suit.
20. Under Ex.P.1 and P.2, the total extent of
land purchased by the plaintiff's mother and
father is shown in Sy.No.11, 12/1 and 47/1.
Under Ex.P.3 and P.4, the plaintiff was allotted
0.20 guntas of land, 0.13 guntas of land and
0.18 guntas of land in Sy.No.11, 47/1 and 12/1
and those documents does not depict the exact
location of the plaint schedule property so as to
identity the same as shown in the plaint
schedule. Ex.P.5 prima facie reveals that the
plaint schedule property is no more, which is
already sold by the alleged GPA holder of the
plaintiff and his brothers in favour of the 4th
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defendant. Under Ex.P.6, the 4th defendant
sold the very same property in favour of
defendants 1 to 3. On the basis of the
photographs along with the bills, letter issued
from BESCOM, it is not sufficient to hold that
the plaintiff is in lawful possession of the plaint
schedule property as on the date of the suit."
10. Being aggrieved by the same, plaintiff has filed
the present appeal.
11. Smt.Nandini, learned counsel reiterating the
grounds urged in the appeal memorandum vehemently
contended that approach of the Trial Court in dismissing
the suit in not properly appreciating the material evidence
on record has resulted in miscarriage of justice and sought
for admitting the appeal for further consideration.
12. Respondent Nos.1 to 3 engaged the services of
Sri.N.Thejas, learned counsel who is absent today.
13. In the light of the arguments put forth on behalf
of the appellant, this Court perused the material on record
meticulously.
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14. On such perusal of the material on record, in
paragraph No.19 of the impugned judgment, learned Trial
Judge has held that there is a comprehensive suit already
pending and therefore, suit for bare injunction where
identity of the property is in dispute cannot be decreed
and dismissed the suit.
15. Learned Trial Judge has also taken into
consideration the earlier pending suit in O.S.No.4091/2004
where also question of identity is in issue.
16. It is settled principles of law and requires
emphasis that injunction can be granted to definite
property.
17. In the case of hand, even though plaint
schedule referred to supra has got definite boundaries,
since there is dispute as to the very identity of the
property, having regard to the adjacent land being
developed, this Court is of the considered opinion that
dismissal of the suit of the plaintiff is just and proper;
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more so in view of the pendency of the comprehensive suit
filed by the very same plaintiff.
18. Accordingly, no grounds are made out to admit
the appeal for further consideration.
19. Hence, the following:
ORDER
i. Admission declined.
ii. Appeal is dismissed.
iii. No order as to costs.
Sd/-
(V SRISHANANDA)
JUDGE
KAV
CT: BHK
